Probate can look straightforward until an executor encounters an unusual Will, property, debts, family disputes or a Court requisition. We explain what is involved and when getting a lawyer to handle the estate may save time, cost and risk.
If you have been appointed as the executor of a Will in NSW, one of the first questions you may ask is:
“Can I just do the probate myself?”
The short answer is yes. There is no requirement that an executor must use a solicitor to apply for probate in NSW.
But there is a more important question:
Should you do it yourself?
Probate is not simply completing an online form. As executor, you are taking responsibility for administering another person’s estate. That can include identifying the deceased’s assets and debts, determining what actually forms part of the estate, interpreting the Will, obtaining probate, paying liabilities, dealing with property and ultimately distributing the estate to the correct beneficiaries.
If something goes wrong, it is the executor who may have to deal with the consequences.
Probate is a grant made by the Supreme Court of NSW confirming the Will and recognising the executor’s authority to administer the estate.
The Supreme Court describes a grant of probate as the legal document which authorises an executor to manage the estate in accordance with the Will.
You can read the Court’s guidance here:
Supreme Court of NSW: Applying for a grant of probate
Probate is commonly required where an organisation holding estate assets requires evidence of the executor’s authority before it will release or transfer those assets.
Before applying, an executor may need to:
Most uncontested probate applications in NSW are now filed online through the NSW probate system.
Supreme Court of NSW: Wills and probate
The Court also publishes specific information about probate notices and the requirements applying to them:
Supreme Court of NSW: Notice of intended application for probate
The notice gives creditors, relatives and other interested people an opportunity to become aware of the proposed application. The Court states that at least 14 days must pass before the relevant summons is filed. This requirement arises under the Probate and Administration Act 1898 (NSW).
One of the biggest misconceptions about deceased estates is that obtaining probate means the executor’s work is largely finished.
Usually, it is not.
The executor may still need to:
That is why a probate lawyer is not simply filling in a Court form.
The more important part of the solicitor’s role is often identifying issues the executor may not know exist.
A DIY probate application can become significantly more complicated if something about the Will, the deceased or the estate is unusual.
A photocopy of a Will does not automatically place the executor in the same position as having the original.
Evidence may be required concerning the original Will and the circumstances in which it disappeared.
The Supreme Court categorises applications involving copies of Wills and informal Wills as complex probate applications.
Supreme Court of NSW: Complex probate proceedings
Writing, alterations, missing staples, attached documents or changes to the physical condition of the Will can require explanation.
The executor may need to provide additional affidavit evidence before probate will be granted.
The name appearing on the Will may differ from the name appearing on a property title, bank account or other asset.
Those discrepancies may need to be explained properly in the probate material.
If several testamentary documents are located, the executor needs to determine which document represents the deceased’s last valid Will.
That is not something an executor should simply assume.
Where several executors have been appointed, the probate application needs to address what is happening with each executor.
Depending on the circumstances, an executor may renounce their right to probate.
The Supreme Court provides guidance about applications involving an executor who has renounced:
Supreme Court of NSW: Complex probate proceedings
An executor needs to determine what actually belongs to the deceased personally and what does not.
The fact that the deceased controlled or used an asset does not necessarily mean it forms part of their estate.
If a beneficiary questions the Will, an estranged child indicates that they intend to make a claim or family members disagree about what should happen to the estate, the executor needs to be particularly careful.
Family provision proceedings in NSW are governed principally by Chapter 3 of the Succession Act 2006 (NSW).
Section 58 provides that a family provision application is generally required to be commenced within 12 months of the date of death, unless the Court permits otherwise.
NSW legislation: Succession Act 2006
These issues can change an apparently straightforward estate very quickly.
The Supreme Court can issue a requisition requiring further information, evidence or correction before the grant is made.
That does not necessarily mean there is a serious problem.
It does, however, mean additional work and potentially additional delay.
The Supreme Court publishes its current probate processing dates, including separate processing information for answers to requisitions and complex applications:
Supreme Court of NSW: Current probate processing times
For families waiting to sell or transfer a property, access funds or finalise an estate, avoidable requisitions can be frustrating.
A solicitor experienced in probate should be able to identify many common issues before the application is filed and prepare the necessary evidence at the outset.
This can present the greater risk.
Obtaining probate does not mean the executor can immediately distribute everything to the beneficiaries.
Before distributing, an executor may need to consider:
The Supreme Court provides for publication of a Notice of Intended Distribution.
Supreme Court of NSW: Notice of intended distribution of an estate
The Court explains that publication is not mandatory in every case, but can provide an executor or administrator with protection from personal liability for certain claims that were not known before the estate was distributed, provided the legislative requirements are satisfied.
The relevant protections are found in section 93 of the Succession Act 2006 (NSW).
NSW legislation: Succession Act 2006, section 93
This is one of the areas where obtaining advice before distribution can be particularly important.
Once money has been paid to beneficiaries, correcting an incorrect distribution can become considerably more difficult.
Potentially.
Being appointed executor does not ordinarily make you personally responsible for the deceased’s debts.
The concern is different.
An executor has duties in administering estate property. Personal exposure may arise where the executor deals with the estate improperly, including where assets are distributed without adequately dealing with claims or liabilities.
Section 93 of the Succession Act provides a statutory mechanism that can protect a legal personal representative who distributes an estate after complying with the relevant notice and timing requirements.
This is one of the main reasons an executor should obtain advice before making substantial distributions.
Real property adds another layer to the administration.
The executor may need to determine:
Revenue NSW provides specific guidance for property transferred from a deceased estate.
Revenue NSW: Transfer duty concession for deceased estate transfers
A concessional transfer duty rate may apply to certain transfers from an executor or administrator to a beneficiary where the statutory requirements are met.
Where the Will changes how the property is to be dealt with, or beneficiaries propose a different distribution, the duty position may also need to be considered.
This is another reason property estates are rarely just about completing a probate application.
It does not necessarily mean handing over every administrative task.
An executor can still deal with practical matters such as personal belongings, household accounts and gathering information while a solicitor deals with the legal work.
For example, we can assist with:
For many executors, that is preferable to working through an unfamiliar Court process while also carrying the legal responsibility for the estate.
We would recommend obtaining legal advice where:
The best time to identify a probate problem is before the estate has been distributed.
You legally can.
Whether you should is a different question.
For a genuinely simple estate, some executors choose to undertake the process themselves.
But where there is property, substantial money, several beneficiaries, unusual provisions in the Will or any possibility of a dispute, getting advice early can reduce the risk of delays and mistakes.
A probate solicitor also has one advantage that a Court form or online guide cannot provide: they can look at the whole estate and identify an issue you may not have realised was relevant.
At Urban Law Group, we assist executors throughout NSW with probate and deceased estate administration.
We can manage the probate application, assist with estate property, advise you about your obligations as executor and guide you through the administration until the estate can safely be distributed.
You can remain involved in the practical aspects of the estate while we deal with the legal process.
If you have been appointed executor and are unsure what you need to do next, it is worth getting advice before dealing with or distributing estate assets.
Contact Urban Law Group and we can review the Will, explain what is required and give you a clear path forward.